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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Hillsborough-northern judicial district No. 2010-458

STATE OF NEW HAMPSHIRE v. MICHAEL SOTO Argued: September 21, 2011 Opinion Issued: November 22, 2011 Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Getman, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman and Clara E. Lyons on the brief, and Mr. Schulman orally), for the defendant.

LYNN, J. Following a jury trial in Superior Court (Smukler, J.), the defendant, Michael Soto, appeals his conviction for being an accomplice to first-degree murder. See RSA 626:8, 630:1-a, I(a) (2007). We affirm. I The defendant's conviction arises out of the fatal shooting of Aaron Kar in Manchester on the evening of January 2, 2007. On the previous day, a man named Bill threatened Roney White's young cousins with a knife at a 7-Eleven

store close to Roney's home. When Roney learned of the incident from his cousins, he directed them to identify the man with the knife. Finding Bill standing outside the store, Roney punched him in the face in retaliation and fled the scene. Later that night, apparently in response to Roney's actions, Kar and his friends drove past a small group of people standing on the street, which included Roney, his brother Roscoe White, and their friend Anthony Clagon, and unsuccessfully attempted to hit one of them with a stick from the moving vehicle. No further encounter between the two groups occurred that night. The next day, at around 2:30 p.m., Bill and another person attacked Roney with a baseball bat as he was walking alone on Nashua Street. Badly injured, Roney stumbled home to his mother and two brothers, Roscoe and Raymond Alleyene. Roney's mother took him to the hospital. Shortly thereafter, Alleyene, Clagon, and Roscoe met at Roscoe's house and discussed the possibility of an armed fight in retaliation for the attack on Roney. After Roscoe failed to get his own gun to work, he called some friends in Nashua, asking them to bring a gun. That evening, the defendant, his brother Sergio, Andrew Gonzalez, and Clagon's cousin Kim and her children drove from Nashua to Manchester in a red Chevrolet Blazer. The men met Clagon, Alleyene, and Roscoe in the room Roscoe shared with Roney, smoked marijuana, and settled on a plan to find Roney's attackers and confront them. After Roscoe confirmed that the defendant had brought a gun, the six men set out in the Blazer to find Roney's attackers. A short time later, they found a group of people whom they suspected had been involved in Roney's attack gathered near a dumpster. After driving past the group once or twice, they parked the Blazer around the corner and discussed who would do the shooting. They settled on Roscoe as the shooter based on his blood relationship with Roney. The defendant then wiped the gun with his shirt, racked the slide to cock it, and handed it to Roscoe. Roscoe left with a mask on, shot Kar in the leg and abdomen, returned to the Blazer, and the men drove away. Kar later died from his wounds. The jury convicted the defendant of first-degree murder based on his role as an accomplice in Kar's death. On appeal, the defendant argues that the trial court erred: (1) in not giving the jury a provocation manslaughter instruction; (2) in not giving a reckless manslaughter instruction; and (3) in permitting the introduction of an audio recording of Roscoe White discussing the crime with an informant.

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II The defendant first argues that the trial court should have instructed the jury to consider whether the defendant acted under an extreme mental or emotional disturbance caused by extreme provocation, see RSA 630:2, I(a), thereby reducing his criminal liability from murder to manslaughter. He argues that "there was overwhelming evidence to support a jury determination that Soto had been adequately provoked within the meaning of [the provocation provision of the manslaughter statute]." We disagree. The defendant was entitled to the requested jury instruction only if there was some evidence to support a rational finding in favor of that defense. State v. Balliro, 158 N.H. 1, 5 (2008) (quotation and brackets omitted). "Some evidence" requires more than a minutia or scintilla of evidence. Id. "Where . . . there is simply no evidentiary basis to support the theory of the requested jury instruction, the party is not entitled to such an instruction, and the trial court may properly deny the party's request." Id. (quotation omitted). We will search the record for evidence supporting the defendant's requested jury instruction, and we will uphold the denial of a requested jury instruction absent an unsustainable exercise of discretion. Id. "A person is guilty of manslaughter when he causes the death of another . . . [u]nder the influence of extreme mental or emotional disturbance caused by extreme provocation but which would otherwise constitute murder." RSA 630:2, I(a) (2007). Under the common-law rule, to reduce the crime of murder to manslaughter, the provocation must be so severe or extreme as to provoke a reasonable person to kill another person out of passion.1 State v. Smith, 123 N.H. 46, 48 (1983). Even if a reasonable person would have committed the act, still the defendant must have been actually provoked. 2 W. LaFave, Substantive Criminal Law

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